the proposal to amend the EU’s Returns Directive


Steve Peers,
Professor of Law, University of Essex
One of the key EU laws regulating
migration is the Returns
Directive
, now nearly ten years old, which regulates the main aspects of
irregular migration by non-EU citizens. It requires Member States in principle
to issue a return decision to every non-EU citizen not authorised to be on
their territory, and to enforce that decision by removing the person concerned.
In some cases, irregular migrants should be given a period for voluntary
departure, so they won’t be subject to forced removal. Member States are required
to issue entry bans to many of those subject to a return decision, but must
provide for basic remedies to challenge expulsion. There are also rules
on the grounds for detention of irregular migrants and their conditions during
detention.
When it was adopted, NGOs
supporting migrants believed that the Directive set an inexcusably low
standard. However, in practice the CJEU has interpreted the Directive more
liberally than some expected. I discussed this in detail in a paper
published in 2015, and there have been several more CJEU judgments interpreting
the Directive since then: Celaj
(discussed here),
Affum,
Ouhrami,
Gnandi
and KA.
For instance, the case law limits the use of the ordinary criminal law to jail
irregular migrants, requiring Member States to use the administrative detention
rules in the Directive in most cases. The jurisprudence also establishes a
limited right to a hearing for irregular migrants (discussed here),
and in some extreme cases provides for a basis to prevent expulsion of irregular migrants, and secure their basic
rights to health care in the meantime (as discussed here).
The case law has been
sufficiently liberal that in light of the perceived refugee ‘crisis’ of the
last three years, it’s the EU Commission and Member States who are now concerned
about the law, because in their view it is not stringent enough. This approach was set out in an ‘action
plan
’ and a recommendation
issued by the Commission in 2017, as well as a revised Returns
Handbook
. They represented a change of tone from the 2014 Commission report
on the implementation of the Directive, discussed here.
In 2014, the Commission urged
Member States to apply the Directive generously, while in 2017 it recommended
that they apply it as strictly as possible. But there are limits to the latter
strategy without amending the legislation to lower standards, and today the
Commission did just that, tabling a proposal
to amend
the Directive. To become law, it must still be agreed by the
European Parliament and the Council (Member States’ interior ministers). It
forms one of a number of measures proposed or adopted in recent years to strengthen
migration control in light of the perceived crisis, including changes to the EU’s
Frontex border agency (discussed here),
and greater use of the EU’s Schengen Information System to enforce entry bans
and expulsion orders (the agreed text is here).
 Another proposal
to give further powers to Frontex – including to assist more with expulsions –
was also released today.
The UK, Ireland and Denmark opt
out of this Directive – although it will apply
to UK citizens in the participating Member States after Brexit, in the event
that they are irregular migrants.
The first change in the proposal
is to define ‘risk of absconding’. The effect of such a definition is to make
it easier to refuse a prospect of voluntary departure, and correspondingly
easier to justify detention. Reducing the number of people given the chance of voluntary
departure will in turn increase the number of those subject to an entry ban.   
The list of cases which might constitute
a risk of absconding is long (there are sixteen factors listed) and
non-exhaustive (‘at least’). Some of the grounds are very broad (‘illegal entry’).
Member States will have to apply these criteria on a case-by-case basis, but
four of the grounds create a rebuttable presumption: using false documents et
al; opposing expulsion violently or fraudulently; not complying with a measure
like a reporting requirement; or violating an entry ban.
There’s a new obligation for
irregular migrants to cooperate with the
authorities
, which reflects CJEU case law such as KA. The proposal does not, however, add the right to a hearing
expressly into the Directive. Member States have a new obligation to issue a return decision as soon as a
migrant loses a right to a legal stay, or an asylum seeker’s application is
turned down at first instance. In theory this just repeats the underlying
obligation to issue a return decision to all irregular migrants, but the
Commission states that not all Member States do this. The issue of a return
decision after a first-instance refusal of an asylum application takes account
of the Court’s judgment in Gnandi:
asylum-seekers cannot be regarded as irregular migrants until a refusal of
their application at that stage. The implications of this for appeals are
discussed further below.
Voluntary departure is tightened up. First of all, Member States
need no longer give a seven-day minimum of time for an irregular migrant to
depart. Secondly, the three cases where Member States can opt to refuse to give the irregular migrant a chance to leave voluntarily
– risk of absconding, manifestly unfounded or fraudulent application for legal
stay, and risk to public policy, public security and public health – are replaced
by an obligation to refuse the chance
of a voluntary departure in such cases. As noted above, the effect of this
change is bolstered by including a wide definition of what might be considered
as a risk of absconding. Although the CJEU has narrowly interpreted the
exception for public policy, et al, as discussed here,
this matters less now that the ‘risk of absconding’ ground is widely defined.
There’s a new obligation to try
to confirm the identity of the irregular migrant who doesn’t have a travel
document, and also to obtain such a document. The thinking is presumably that
this should facilitate the expulsion process. Non-EU countries sometimes insist
on such documentation before readmission, and as the Commission notes, its
proposal is consistent with separate recent proposals to amend the EU’s visa
laws (discussed here)
to punish non-EU countries for non-cooperation.
Next, there’s a change to the
rules on entry bans. Member States may impose an entry ban on an irregular
migrant without making a return decision, if they detect the irregular migrant on
his or her way out of the EU. This
would not be an expulsion measure, but a means of trying to prevent the person
concerned from coming back in future. Imposing an entry ban would only apply in
such cases ‘where justified on the basis of the specific circumstances of the
individual case and taking into account the principle of proportionality.‘
As noted above, there’s also an implied change to the rules on entry bans too. Since an entry ban must be imposed when an irregular migrant is refused
the possibility of voluntary departure (subject to exceptions in individual
cases), narrowing down the cases where voluntary departure is possible will
have the knock-on effect that more entry bans are issued.  
Next, there’s a new obligation to
set up a ‘return management system’, comparable to Member States’ obligations
relating to border control and asylum. This will have no direct impact upon
irregular migrants.
There are several changes to the
rules on remedies. First, any remedy must be before a judicial authority, not
an administrative authority. This implicitly takes account of recent CJEU case
law on appeals against refusals to issue a visa (El-Hassani),
where the Court said that the EU Charter of Rights requires judicial control of
immigration decisions.
Next, a new clause states that
failed asylum seekers have only one instance of appeal against a return
decision, if they have already had effective judicial review within the asylum
process. This transposes the recent Court judgment in Gnandi. A further new clause, also taking account of CJEU case law,
states that where the irregular migrant has concerns about refoulement (being sent to an unsafe country), at last the first
level of appeal must have suspensory effect, ie stopping removal from the
country. The irregular migrant can ask for suspensory effect in the event of a
further appeal, but the national court must rule on that request within 48
hours. Furthermore, these possibilities don’t exist where there have already
been proceedings concerning asylum or legal migration status, unless there are
new issues in the case. Finally, failed asylum seekers will have only five days
to appeal a return decision.
The proposal then moves on to detention.
There will now be three grounds for detaining irregular migrants, rather than
two; and anyway this list will become non-exhaustive (the word ‘only’ will be
deleted). The first ground – risk of absconding – will be broadly defined, as
we have already seen. The second ground, which was already broadly defined, remains
‘avoids or hampers the preparation of return or the removal process’. The new
ground is where the irregular migrant ‘poses a risk to public policy, public
security or national security.’ This new ground matches one of the grounds to
detain asylum seekers in EU asylum legislation, which the CJEU has interpreted
narrowly (as discussed here);
but this hardly matters when the other two grounds for detention are broadly
defined, and the whole list is non-exhaustive.
Another change relates to time
limits: Member States’ maximum time for detention must be at least three
months. This will not mean that all irregular migrants must be detained for
that long, only that this must be a possibility on the books as a maximum
period of detention. The other current rules on detention time limits – six months
as the normal time limit, a further twelve months as a possibility in special
circumstances – are retained.
Finally, a new clause sets out
special rules for failed asylum seekers at border posts, effectively derogating
from some key standards in the Directive. They must be given a standard ‘tick-box’
form setting out the return decision, rather than a reasoned explanation. In
principle there’s no chance for voluntary departure, except where the migrant
holds a valid travel document (handed over to the authorities) and cooperates
fully. Such migrants will have only 48 hours to appeal a return decision, and
suspensive effect only applies where there are significant new findings or there
was no effective judicial review already. Detention is apparently always justified,
with a four-month time limit; but then the proposal provides for the regular
time limits to be applied on top of this, if return is not possible.
This proposal is entirely
concerned with facilitating the expulsion of irregular migrants, and detaining
them to that end – in addition to imposing entry bans to make sure they do not
return. The narrower possibilities to obtain a period of voluntary departure will
mean surprise knocks at the door, detention time and forced removal for more irregular
migrants. More legal challenges will be fast-tracked, with the time limits in
this proposal arguably below the standards set by CJEU case law (see the Diouf
judgment). More migrants will be detained, and the Member States with the most generous
approach to detention time limits will have to be more stringent.
While the proposal does not directly affect the case law that limits
Member States’ use of criminal law to detain irregular migrants, it will to
some extent circumvent the limits in that case law indirectly, by giving Member States more powers to detain irregular
migrants in the context of administrative law instead. Note, however, that the rules
on detention conditions would not be changed; and the continued requirement to
channel immigration detention largely away from the criminal law process should
prevent the family separation we have seen in recent months in the USA, which
results from applying criminal law detention to irregular migrants who are
parents.
Will the proposal impact upon the
declining rates of expulsion? (45% in 2016 and 36% in 2017, according to the
Commission) It’s hard to tell, because there’s no proper impact assessment alongside
the proposal: this is not evidence-based policy-making, or at least not
transparently so. Some of the proposals might possibly backfire: for instance, if
the consequence of an irregular migrant leaving the EU is being detected and
then subjected to an entry ban, the irregular migrant concerned might just
decide not to leave at all.
In any event, the effectiveness
of expulsion policy depends partly upon cooperation of non-EU States, and this
proposal can’t affect that – although, as noted above, there are other EU
initiatives underway on that front. Detaining more people has a cost for
national budgets, but this proposal overlooks this awkward fact. Anyway,
without additional cooperation from outside the EU, constructing more detention
centres will not by itself increase the rate of expulsion, but merely increase
the cost of irregular migration for national budgets and the misery of the
persons concerned.
Peers & Barnard: chapter 26
Photo credit: Robert Hickerson on
Unsplash 



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